New details surface in teen's shooting by Border Patrol

Apr. 11, 2013
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Several bullet holes circled by Mexican police are visible on a medical office Oct. 15, 2012, in Nogales, Sonora. The border fence is in the background. Jose Antonio Elena Rodriguez, 16, was killed at the site Oct. 10. / Charlie Leight, The Arizona Republic

by Bob Ortega, The Arizona Republic

by Bob Ortega, The Arizona Republic

NOGALES, Sonora - A new witness and new evidence seem to bolster the case that a Mexican teen shot to death by the Border Patrol in October here was walking down the street at the time he was killed - not, as the Border Patrol has maintained, throwing rocks over the fence at agents.

The new information also suggests that more than one agent may have opened fire on Jose Antonio Elena Rodriguez, 16. That information arrived as the family of the youth held a march on Wednesday in Nogales to protest what they called the FBI and Border Patrol's "veil of silence" about the killing.

Both the bureau and the patrol have declined to comment on the boy's death, citing an ongoing FBI investigation. They have declined to identify the agent or agents involved and have declined to release a surveillance video of the incident, shot by cameras mounted above the border fence.

Agents along with Nogales, Ariz., police, were chasing two men they believed were fleeing back to Mexico after climbing over the fence to the U.S. side with drugs. The agents said rocks began flying over the fence at them as they tried to arrest the men climbing back over the fence.

The new witness, private security guard Isidro Alvarado, said that on the night of Oct.10, he was walking about 20 feet behind Elena Rodriguez down Calle Internacional, which runs parallel to the border fence, when two other youths suddenly ran past them. Then he said he heard gunshots from two separate places beside the fence and saw Elena Rodriguez fall.

Alvarado said his brother, a Nogales police officer, persuaded him to come forward and speak to the Sonora Attorney General's Office. Alvarado's statements were first reported by Nogales radio station XENY-AM here. He also spoke at a news conference here Wednesday.

Luis Parra, a Nogales, Ariz., lawyer representing the Elena Rodriguez family, said he recently interviewed Alvarado and then confirmed with a lawyer from the Sonora Attorney General's Office that the first call to Nogales police reporting the shooting, immediately after it happened, came from Alvarado's cellphone.

"But what has made the family even more distraught are the indications that two agents were involved in the shooting and that he (Elena Rodriguez) had to have been lying on the ground when five bullets penetrated his back," he said.

In a forensic scene-analysis report, investigators for the Sonora Attorney General's Office concluded that at least five shots into Elena Rodriguez's back must have hit him while he was lying on the sidewalk. This jibes with findings in an autopsy, previously reported byThe Arizona Republic, that all but one of the bullets that hit the boy entered from behind and most at an angle suggesting he was prone when hit.

In their forensic report, investigators also describe how they climbed the story-and-a-half-high bluff on which the border fence sits and looked through the fence as Border Patrol agents and Nogales, Ariz., police conducted their investigation on the U.S. side of the fence.

They describe an area next to the fence, cordoned off with police tape, where they counted 11 shell casings, and another taped-off area, about 28 feet away, where they could see three more casings. This seems to suggest that agents fired from two different spots along the fence, Parra said.

Meanwhile, a Sonora ballistics report describes the nine bullets recovered by Mexican police - six from the boy's body and three from the street - as hollow-point, .40-caliber slugs fired from one or more polygonal-rifled guns.

Michael Haag, a forensic scientist and ballistics expert based in Albuquerque, reviewed the report. He said this is a relatively uncommon type of rifling, a type used in the Heckler & Koch P2000 handgun, among others.

That is the standard-issue Border Patrol sidearm, a spokesman confirmed.

The ballistics report said polygonal rifling, which leaves a much smoother barrel than conventional rifling, makes it harder to distinguish whether all the bullets were fired by the same gun or different guns.

"Because it leaves no good marks on the bullets, it's very rare by forensic science to identify the bullets back to a specific gun," Haag said. "You can ID it sometimes, so it should be attempted."

He also noted that each Border Patrol agent should have told the FBI whether he or she fired shots that night.

The Sonora ballistics report identified the bullets as Starfire hollow points, but Haag said the poor-quality photocopies of the bullets show cannelures - a ring that runs around the circumference of the bullet - that are not found on Starfire rounds but are consistent with the similar Federal Premium HST .40-caliber rounds.

Those are standard-issue ammunition for the H&K P2000 handgun, a Border Patrol spokesman confirmed.

The Department of Homeland Security expects shortly to complete a review of the Border Patrol's use-of-force policy, which allows agents to fire at rock-throwers, Secretary Janet Napolitano said in an interview with The Republic last week.

Eight incidents have occurred in the past three years in which agents have shot and killed alleged rock-throwers, among 20 deaths agents caused since the beginning of 2010. In all but three of those cases, the FBI investigations remain open and the Border Patrol and the DHS have declined to release any information, including the names of the agents involved.